SCOTUS Reviews the “Military Age Male” Standard on Thursday

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One of the most consistent statements of outrage I’ve seen from people just coming to the horrors of the drone program is the military aged male criterion: the Administration’s assumption that all military age males killed in a drone strike must be combatants.

Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.

Justin Elliott even got the Administration to reiterate the claim, albeit anonymously.

I gave the White House a chance to respond, and it declined to comment on the record. But speaking on condition of anonymity, an administration official acknowledged that the administration does not always know the names or identities of everyone in a location marked for a drone strike.

“As a general matter, it [the Times report] is not wrong that if a group of fighting age males are in a home where we know they are constructing explosives or plotting an attack, it’s assumed that all of them are in on that effort,” the official said. “We’re talking about some of the most remote places in the world, and some of the most paranoid organizations on the planet. If you’re there with them, they know you, they trust you, there’s a reason [you’re] there.” [brackets original]

What no one seems to get, however, is that between them, the Bush and Obama Administrations have been using that standard to detain people for over a decade. Indeed, there are probably over 30 men (I suspect the number is closer to 50) still at Gitmo being held on that standard, most of them for over a decade.

More importantly, SCOTUS will decide whether to uphold that standard on Thursday (or whenever they get around to accepting or denying cert on the 7 Gitmo cases they’ve been agonizing over for weeks).

The case is question is Uthman Abdul Rahim Mohammed Uthman’s habeas petition. Here’s how his cert petition describes the issues presented by his case.

Whether the Authorization of Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (‘‘AUMF”), authorizes the President to detain, indefinitely and possibly for the rest of his life, an individual who was not shown to have fought for al Qaeda, trained to fight for al Qaeda, or received or executed orders from al Qaeda, and was not claimed to have provided material support to al Qaeda.

The government has always yoked its detention authority closely to its targeted killing authority (see, for example, the reported justification for the Awlaki killing). And here you can replace “detain, indefinitely and possibly for the rest of his life” with “kill with a drone strike” and you’ve got precisely the authority that Obama (and Bush before him) claims to kill all men in the vicinity of suspected al Qaeda figures, even absent any claim they were al Qaeda fighters.

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When Did the “Signature Strikes” Start in Yemen?

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Last week, I argued that the focus on the drone vetting process–the “Kill List”–is a shiny object, distracting us from signature strikes targeted at patterns, not people, in Yemen. Today, I’m going to push that further and suggest the focus on drones is also a shiny object distracting from the degree to which we’ve gone to war against Yemeni insurgents, using a variety of tactics including but not limited to drones.

I’ve long accepted, based on the public reporting, that Obama approved signature strikes in Yemen–and John Brennan took over the targeting process–just a day or two after the Saudis delivered up UndieBomb 2.0 around April 20. That’s based largely on the fact that when Greg Miller first reported on the issue on April 18, he spoke prospectively. When the WSJ reported that Obama had approved signature strikes, it said the decision had been made “this month” (meaning some time in April), and it pointed to an April 22 drone strike that seemed likely to be a signature strike.

The frequency of U.S. strikes in Yemen is expected to increase with the changes. On Sunday, a CIA-piloted drone hit a vehicle believed to be carrying AQAP militants. Intelligence analysts are working to identify those killed.

[snip]

The White House’s decision this month stopped short of giving CIA and JSOC the Pakistan-style blanket powers that had been sought—opting instead for what one defense official termed “signature lite.”

Interestingly, that WSJ report pointed to “several direct threats to the US” that surely included the UndieBomb sting that had already reportedly been delivered up to the Administration.

U.S. counterterrorism officials said they are currently tracking several direct threats to the U.S. connected to AQAP. The officials wouldn’t provide further details because that information is classified.

So one way or another, Administration sources seemed to time this to the UndieBomb plot.

But I want to consider the likelihood that Obama embraced “signature strikes”–or rather, expanded drone targeting–earlier than that (though remember that the Administration reportedly knew the UndieBomb plot was coming up to a month before April 20, when it was reportedly delivered up).

Based on TBIJ’s reports of drone strikes in Yemen, it’s fairly clear what have been treated as drone strikes started getting out of control in March, after Abed Rabu Mansour Hadi took over as President in February, not just in April. There are the strikes in three days in early March, which TBIJ estimates killed upwards of 50 people.

The latest strike involved at least five U.S. drones and took place in the Jabal Khanfar region of Jaar, located in southern Abyan province, two senior Yemeni security officials said. At least six suspected al Qaeda militants were killed, Yemeni officials said.

A member of the military committee — Yemen’s highest security authority — confirmed that strike, and said the Yemeni government was given no advance warning of it.

“The United States did not inform us on the attacks. We only knew about this after the U.S. attacked,” the committee member told CNN.

The strike was the third such attack on suspected al Qaeda targets in less than three days, according to Yemeni officials.

The United States was also involved in two other major attacks on Friday and Saturday, which killed at least 58 suspected al Qaeda insurgents, two senior Yemeni defense ministry officials said.

The Friday airstrikes occurred in the Yemen province of al-Baitha in areas used as launching pads for militant attacks. The second attack took place in the towns of Jaar and Zinjibar in Abyan province.

One of the strikes–in Bayda–reportedly killed a significant number of civilians.

It’s not just the civilian casualties, the high numbers of dead, or the reported Yemeni ignorance of the strikes that suggest these might be signature strikes (or something even broader) rather than personality strikes. They also accompany other military action–including reported naval bombardment–that suggests they’re part of the coordinated assault on insurgents. While there have certainly been a number of lower level AQAP members named as those killed in the strikes, the focus seems to be on militarily significant targets, not individuals.

Also note, on some of these strikes, there has been confusion whether a drone or manned planes carried out the attack (partly based on the mistaken assumption–now largely put to rest–that only Yemen, rather than the US, would be using manned aircraft in Yemen).

Finally, note that all of these strikes came in the wake of AQAP claims to have killed a CIA officer earlier in March, though the US denied it. Provide AQAP targets to hit, they’ll hit those targets, and you’ve got a reason to retaliate 100 times.

With all that in mind, re-read this April 2 LAT article. Read more →

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The Commercial for John Brennan’s Signature Strike Drone Shop TADS

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Between them, the NYT and the Daily Beast published over 10,000 words on Obama’s drone assassination program yesterday. Both stories rolled out the new acronym the Administration wants us to use: terrorist-attack-disruption strikes, or TADS. Neither of them, in those over 10,000 words, once mentioned Abdulrahman al-Awlaki, Anwar al-Awlaki’s 16 year old American citizen son also killed in a drone strike last year.

And while both stories break important new ground and challenge the Administration’s narrative in key ways, the prioritization of TADS over Abdulrahman in them is a pretty clear indication of the success with which the Administration pushed a certain agenda in these stories.

As I suggested at the end of this post, I think John Brennan hoped to use them to reframe recent changes to the drone program to make them more palatable.

Drone Strikes before They Got Worse

Before I lay out the new spin these stories offer on the signature strikes and vetting process rolled out last month, let’s recall what was included in the drone program before these recent changes, in addition to the killing of a 16-year old American citizen.

According to the NYT, the Administration assumed that, “people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good” and therefore all military age males in a strike zone could be targeted. A former senior counterterrorism official calls earlier drone targeting, “guilt by association.” Of signature strikes in Pakistan, a senior (apparently still-serving) official joked “that when the C.I.A. sees ‘three guys doing jumping jacks,’ the agency thinks it is a terrorist training camp.” And one of Obama’s top political advisors, David Axelrod, was attending targeting meetings, injecting a political taint on the program.

Even with all of that, these stories don’t explain how the intense vetting process they describe resulted in the al-Majala strike that made Jeh Johnson think about going to Catholic confession and “shook” John Brennan and President Obama. Or, of course, how we came to kill a 16 year old American citizen.

So all of that was in place before the recent changes to the drone assassination program made it worse. Don’t worry, though, it’s TADS now.

With all that in mind–Abdulrahman and the guilt by association and the three guys doing jumping jacks–let’s look at how these stories reframe signature strikes in Yemen and White House consolidation of the vetting.

Assassination Czar John Brennan’s Drone Shop

Consider the way the articles describe the targeting process. The NYT–relying on a single source, “an administration official who has watched [Obama] closely”–describes a very aggressive vetting process led by the DOD, then nods to a “parallel” process at CIA in countries where it leads the vetting.

The video conferences are run by the Pentagon, which oversees strikes in those countries, and participants do not hesitate to call out a challenge, pressing for the evidence behind accusations of ties to Al Qaeda.

“What’s a Qaeda facilitator?” asked one participant, illustrating the spirit of the exchanges. “If I open a gate and you drive through it, am I a facilitator?” Given the contentious discussions, it can take five or six sessions for a name to be approved, and names go off the list if a suspect no longer appears to pose an imminent threat, the official said. A parallel, more cloistered selection process at the C.I.A. focuses largely on Pakistan, where that agency conducts strikes.

The nominations go to the White House, where by his own insistence and guided by Mr. Brennan, Mr. Obama must approve any name. He signs off on every strike in Yemen and Somalia and also on the more complex and risky strikes in Pakistan — about a third of the total.

Since for the most part, DOD has managed the Yemen and Somalia strikes, while CIA managed the Pakistan ones, this conflates the vetting for personality strikes targeted at known people and the signature strikes the CIA has targeted against men doing jumping jacks in Pakistan. Somehow, al-Majala and Abdulrahman still got through that vetting process, but the exhaustive DOD one was, for the most part, far more rigorous than the CIA one.

Now compare that description of the DOD vetting process with the one the AP gave on May 21, which it says is “mostly defunct.”

The previous process for vetting them, now mostly defunct, was established by Mullen early in the Obama administration, with a major revamp in the spring of 2011, two officials said.

[snip]

Under the old Pentagon-run review, the first step was to gather evidence on a potential target. That person’s case would be discussed over an interagency secure video teleconference, involving the National Counterterrorism Center and the State Department, among other agencies. Among the data taken into consideration: Is the target a member of al-Qaida or its affiliates; is he engaged in activities aimed at the U.S. overseas or at home?

If a target isn’t captured or killed within 30 days after he is chosen, his case must be reviewed to see if he’s still a threat. [my emphasis]

That is, that free-ranging discussion, the process by which targets could come off the list as well as get put on it? At least according to the AP, it is now defunct–or at least “less relevant.” Read more →

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Angler 2.0: Brennan Wields His Puppet Strings Differently

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As I said earlier, the parallel between the Jo Becker/Scott Shane Angler 2.0 story and the earlier series by Becker and Barton Gellman is hard to miss.

But I’m very interested in how the stories are structured differently. With Angler 1.0, the story was very clearly about Dick Cheney and the methods he used to manipulate Bush into following his advice. Here, the story is really about John Brennan, Obama’s Cheney, portrayed deep in thought and foregrounding Obama in the article’s picture. Indeed, halfway through, the story even gives biographical background on Brennan, the classic “son of Irish immigrants” story, along with Harold Koh’s dubious endorsement of Brennan’s “moral rectitude.”

But instead of telling the story of John Brennan, Obama’s Cheney, the story pitches Obama as the key decision-maker–a storyline Brennan has always been one of the most aggressive pitchmen for, including when he confirmed information on the Anwar al-Awlaki strike he shouldn’t have. In a sense, then, Brennan has done Cheney one better: seed a story of his own power, but sell it as a sign of the President’s steeliness.

The Silent Sources for the Story

I already pointed out how, after presenting unambiguous evidence of Brennan’s past on-the-record lies, the story backed off calling him on it.

But there are other ways in which this story shifts the focus away from Brennan.

A remarkable number of the sources for the story spoke on the record: Tom Donilon, Cameron Munter, Dennis Blair, Bill Daley, Jeh Johnson, Michael Hayden, Jim Jones, Harold Koh, Eric Holder, Michael Leiter, John Rizzo, and John Bellinger. But it’s not until roughly the 3,450th word of a 6,000 word article that Brennan is first quoted–and that’s to largely repeat the pre-emptive lies of his drone speech from last month.

“The purpose of these actions is to mitigate threats to U.S. persons’ lives,” Mr. Brennan said in an interview. “It is the option of last recourse. So the president, and I think all of us here, don’t like the fact that people have to die. And so he wants to make sure that we go through a rigorous checklist: The infeasibility of capture, the certainty of the intelligence base, the imminence of the threat, all of these things.”

That is the only on-the-record direct quote from Brennan in the entire article, in spite of the centrality of Brennan to the story.

And I would bet several of the sources quoted anonymously in the section describing Obama’s method of counting the dead (which still ignores the women and children) are Brennan: “a top White House adviser” describing how sharp Obama was in the face of the first civilian casualties; “a senior administration official” claiming, in the face of credible evidence to the contrary, that the number of civilians killed in drone strikes in Pakistan were in “single digits.”

Note, too, the reference to a memo his campaign national security advisors wrote him.

“Pragmatism over ideology,” his campaign national security team had advised in a memo in March 2008. It was counsel that only reinforced the president’s instincts.

The memo was written not long after Brennan started playing a more central role among Obama’s campaign advisors. But the story makes no mention of his presumed role in it. Further, in describing Jeh Johnson to introduce a quote, the piece notes that he was “a campaign adviser” (it doesn’t say Johnson was also focused on voter protection). But it does not note that Brennan, too, was a key campaign advisor, one with an exclusively national security focus.

Nor does the story note, when it describes how Obama “deployed his legal skills … to preserve trials in civilian courts” it was John Brennan making that case, not the Attorney General.

In other words, in several places in this story, Brennan plays a key role that is downplayed.

The Pro-Drone Narrator

Given that fact, I’m really interested in the several places where the story adopts a pro-drone viewpoint (it does adopt a more critical stance in the narrative voice at the end).

For example, the story claims, in the first part of the story, that the drone strikes “have eviscerated Al Qaeda” without presenting any basis for that claim. This, in spite of the fact that al Qaeda has expanded in Yemen since we’ve started hitting it with drones.

Later, the article uncritically accepts the claim that the drone–regardless of the targeting that goes into using it–is a “precision weapon” that constitutes a rejection of a “false choice between our safety and our ideals.”

The care that Mr. Obama and his counterterrorism chief take in choosing targets, and their reliance on a precision weapon, the drone, reflect his pledge at the outset of his presidency to reject what he called the Bush administration’s “false choice between our safety and our ideals.”

For fucks sake! This article describes how the White House has adopted a “guilt by association” approach to drone targeting. Read more →

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The Assassination Czar’s War Crimes Dodge: Revisiting John Brennan’s Targeted Killing Speech

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Now that John Brennan is in charge of selecting which patterns of behavior we should target with drones, it ought to be easy to charge him with war crimes. The at least eight civilians we killed in Jaar a number of weeks after Brennan seized control of targeting? John Brennan killed them, presumably based not on intelligence about who they were and what ties to AQAP they had, but because they ran out of a house after an earlier strike.

John Brennan is choosing to target people in Yemen without making adequate efforts to avoid civilian casualties. Given that we know he’s making these choices, you’d expect someone to try to hold him accountable.

Of course, such an effort would present all kinds of difficulties. You can’t really make a legal case against Brennan based on anonymous sources in an AP story. Furthermore, moving the drone program into the National Security Council makes it inaccessible to FOIA and, probably, to full Congressional oversight.

Most of all, though, Brennan appears to be preemptively crafting his defense.

When Brennan gave his drone speech on April 30, I–and a few other people–noted that the speech was already outdated. Brennan did admit, unequivocally, that we use drones to kill people.

So let me say it as simply as I can.  Yes, in full accordance with the law, and in order to prevent terrorist attacks on the United States and to save American lives, the United States Government conducts targeted strikes against specific al-Qaida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.

Yet he spoke repeatedly of targeting specific individuals.

Without question, the ability to target a specific individual, from hundreds or thousands of miles away, raises profound questions.

[snip]

In this armed conflict, individuals who are part of al-Qaida or its associated forces are legitimate military targets. [my emphasis]

Thus, he wasn’t talking about the program in Yemen that–perhaps 10 days earlier–had been expanded to target patterns rather than individuals. Rather, he was pretending that the program remained limited to personality strikes, strikes against known targets.

The speech always seemed like an attempt to put the best spin on the program. But the approach makes even more sense now that we know Brennan is the one who has legal liability for making these targeting decisions.

When and if anyone were to charge Brennan for war crimes for targeting civilians, for example, he will point back to these paragraphs as “proof” of his “belief” that we were not targeting civilians.

Targeted strikes conform to the principles of distinction, the idea that only military objectives may be intentionally targeted and that civilians are protected from being intentionally targeted.  With the unprecedented ability of remotely piloted aircraft to precisely target a military objective while minimizing collateral damage, one could argue that never before has there been a weapon that allows us to distinguish more effectively between an al-Qaida terrorist and innocent civilians.

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SCOTUS Cert Grant In Clapper Takes Key 9th Circuit Cases Hostage

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Marcy noted briefly Monday morning, the Supreme Court granted certiorari in Clapper v. Amnesty International:

SCOTUS did, however, grant cert to Clapper v. Amnesty, which I wrote about here and here. On its face, Clapper is just about the FISA Amendments Act. But it also has implications for wiretap exceptions–and, I’ve argued–data mining exceptions to the Fourth Amendment. In any case, SCOTUS seems interested in reversing the 2nd Circuit opinion, which had granted standing to people whose work had been chilled by the passage of the FAA. Also, as I hope to note further today, SCOTUS’ Clapper decision may also impact the Hedges v. Obama ruling from last week.

As Marcy indicated, there is nothing good afoot from SCOTUS taking cert in Clapper; if they wanted to leave the very nice decision of the 2nd Circuit intact, they simply leave it intact and don’t grant review. Oh, and, yes, Marcy is quite right, it’s a very safe bet that Clapper will “impact” the also very nice recent decision in Hedges, which is, itself, headed with a bullet to the 2nd Circuit.

There was, of course, much discussion of the significance of the Clapper cert grant yesterday on Twitter; one of the best of which was between Marcy, Lawfare’s Steve Vladeck and, to a lesser extent, me. To make a long story a little shorter, I said (here and here):

See, and I HATE saying this, I think Kennedy will do just that+then same 5 will kill al-Haramain once it gets to SCOTUS and then they will have capped the Bush wiretapping well completely and closed off standing significantly for the future.

Yikes, I did not contemplate just how true this statement was; the Clapper cert grant has already had a far deeper and more pernicious effect than even I suspected. This morning, in a move I do not believe anybody else has caught on to yet, the 9th Circuit quietly removed both al-Haramain and the CCR case encaptioned In Re: NSA Telecommunications Litigation/CCR v. Obama from the oral argument calendar that has long been set for June 1 in the old 9th Circuit Pasadena courthouse. The orders for both al-Haramain and CCR are identical, here is the language from the al-Haramain one:

Argument in this case scheduled for June 1, 2012 in Pasadena, California, is vacated pending the Supreme Court’s decision in Clapper v. Amnesty Int’l, No. 11- 1025. The court may order supplemental briefing following the Supreme Court’s decision. Oral argument will be rescheduled.

Whoa. This is extremely significant, and extremely unfortunate. Also fairly inexplicable. Entering the order for CCR makes some sense, since it involves the same “fear of surveillance” standing issue as is at issue in Clapper; but doing it for al-Haramain makes no sense whatsoever, because al-Haramain is an “actual” surveillance standing case.

There simply is no issue of the claimed, putative, standing concern that permeates Clapper and CCR. Well, not unless the 9th Circuit panel thinks the Supreme Court might speak more broadly, and expand the parameters wildly, in Clapper just as they did in Citizens United. That would be a pretty ugly path for the Supreme beings to follow; but, apparently, not just a cynical bet on my part, but also a bet the 9th Circuit immediately placed as well.

To be fair, even positive forward thinking players, like Steve Vladeck, thought the lower courts might be copacetic, or that the Supremes might comply. Maybe not so much. I know, shocking. Here is a glimpse, through Vladeck, of the situation:

But at a more fundamental level, there’s one more point worth making: Readers are likely familiar with Alex Bickel’s Passive Virtues, and his thesis that, especially on such sensitive questions where constitutional rights intersect with national security, courts might do best to rely on justiciability doctrines to duck the issue—and to thereby avoid passing upon the merits one way or the other. [Think Joshua at the end of WarGames: “The only winning move is not to play.”] And at first blush, this looks like the perfect case for Bickel’s thesis, given the implications in either direction on the merits: recognizing a foreign intelligence surveillance exception and thereby endorsing such sweeping, warrantless interceptions of previously protected communications vs. removing this particular club from the government’s bag…

And yet, the foreign intelligence surveillance exception only exists because it has already been recognized by a circuit-level federal court, to wit, the FISA Court of Review. Whether the passive virtues might otherwise justify judicial sidestepping in such a contentious case, the fact of the matter is that this is a problem largely (albeit not entirely, thanks to the FISA Amendments Act) of the courts‘ making. To duck at this stage would be to let the FISA Court of Review—the judges of which are selected by the Chief Justice—have the last word on such a momentous question of constitutional law. In my view, at least, that would be unfortunate, and it’s certainly not what Bickel meant…

Back to al-Haramain and the effects in the 9th Circuit. Here is the latest, taken from the Motion for Reconsideration filed late yesterday by al-Haramain, Wendell Belew and Asim Ghafoor:

The question presented in Clapper is thus wholly unrelated to the issues presented on the defendants’ appeal in the present case. The Supreme Court’s decision in Clapper will have no effect on the disposition of the present case. Thus, there is no reason to delay the adjudication of this appeal pending the decision in Clapper, which would only add another year or more to the six-plus years that this case has been in litigation.

It makes sense for the Court to have vacated the oral argument date for Center for Constitutional Rights v. Obama, No. 11-15956, which involves theories of Article III standing similar to those in Clapper. It does not, however, make sense in the present case, where Article III standing is based on proof of actual past surveillance rather than the fear of future surveillance and expenditures to protect communications asserted in Clapper.

Yes, that is exactly correct.

And, therein, resides the problem with Vladeck’s interpretation of what is going on with the Clapper case. Steve undersold, severely, just how problematic Clapper is. Both the discussion herein, and the knee jerk action of the 9th Circuit, the alleged liberal scourge of Democratic Federal Appellate Courts, demonstrate how critical this all is and why Clapper is so important.

Clapper has not only consumed its own oxygen, it has consumed that of independent, and important, nee critical, elements of the only reductive cases there are left in the United States judicial system in regards to these ends. That would be, at an irreducible minimum, al-Haramain in the 9th Circuit.

If you have forgotten about al-Haramain, and the proceedings that took place in the inestimable Vaughn Walker’s, court, here it is. Of all the attempts to attack the Bush/Cheney wiretapping crimes, al-Haramain is the only court case that, due to its unique circumstances, has been successful. It alone stands for the proposition that mass crimes were, in fact, committed. al-Haramain had a tough enough road ahead of it on its own, the road has become all the more treacherous now because of Clapper.

The 9th Circuit should grant the motion for reconsideration and reinstate al-Haramain on the oral argument calendar, but that is quite likely a longshot at this point. Expect the DOJ to file a very aggressive response, they are undoubtedly jumping for joy at this stroke of good fortune and will strive to protect it.

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Judge Enjoins NDAA Section 1021 because Government Implies Speech May Equal Terrorism

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The Court then asked: Give me an example. Tell me what it means to substantially support associated forces.

Government: I’m not in a position to give specific examples.

Court: Give me one.

Government: I’m not in a position to give one specific example.

When Judge Katherine Forrest asked the government, repeatedly, for both generalized clarification and descriptions specific to plaintiffs like Chris Hedges and Brigitta Jonsdottir explaining the scope of Section 1021 of the NDAA, the government refused to give it. Not only was the government unwilling to reassure that even a Pulitzer Prize winning journalist like Hedges would not be indefinitely detained as “a person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces” if he reported on any number of terrorist groups, but it also refused to explain the meaning of the section generally.

Which is the core reason why Forrest not only ruled that the plaintiffs have standing and the case should go forward, but also enjoined any enforcement of Section 1021. In explaining this, she noted that she was forced by the government’s refusal to give clarification to assume that the government believes First Amendment speech is included in the orbit of “substantially supported” that might be indefinitely held under 1021.

It must be said that it would have been a rather simple matter for the Government to have stated that as to these plaintiffs and the conduct as to which they would testify, that § 1021 did not and would not apply, if indeed it did or would not. That could have eliminated the standing of these plaintiffs and their claims of irreparable harm. Failure to be able to make such a representation given the prior notice of the activities at issue requires this Court to assume that, in fact, the Government takes the position that a wide swath of expressive and associational conduct is in fact encompassed by § 1021.

[snip]

This Court is left then, with the following conundrum: plaintiffs have put forward evidence that § 1021 has in fact chilled their expressive and associational activities; the Government will not represent that such activities are not covered by § 1021; plaintiffs’ activities are constitutionally protected. Given that record and the protections afforded by the First Amendment, this Court finds that plaintiffs have shown a likelihood of succeeding on the merits of a facial challenge to § 1021.

I spent much of the day explaining to people why Obama’s Yemen EO is so troubling. I’ve had to describe all the things that have transpired that have criminalized speech since Obama issued a similar EO in 2010–the decision in Holder v. Humanitarian Law Project, the conviction of Tarek Mehanna, and the charging of Bradley Manning with aiding the enemy.

Now I can point to Forrest’s opinion to show that the proposition that journalists might be prosecuted for material support of terrorism for their First Amendment speech–to the extent it’s an extreme proposition–it is the government’s extreme proposition.

Forrest used the government’s stubbornness against it in one other way, too–to get past the rather high bar on whether to issue a preliminary injunction or not. The decision on whether to issue an injunction or not depends on a lot of things. But ultimately, it requires a balancing test between the hardships imposed on the plaintiff and the defense. And since–Forrest explained–the government repeatedly insisted that Section 1021 does no more or less than what the AUMF already does, then enjoining the enforcement of 1021 would not harm the government at all.

In considering whether to issue a preliminary injunction, the Court must consider, as noted above, “the balance of the hardships between the plaintiff and defendant and issue the injunction only if the balance of the hardships tips in the plaintiff’s favor.” Salinger, 607 F.3d at 80.

The Government’s primary argument in opposition to this motion is that § 1021 is simply an affirmation of the AUMF; that it goes no further, it does nothing more. As is clear from this Opinion, this Court disagrees that that is the effect of § 1021 as currently drafted. However, if the Government’s argument is to be credited in terms of its belief as to the impact of the legislation–which is nil–then the issuance of an injunction should have absolutely no impact on any Governmental activities at all. The AUMF does not have a “sunset” provision: it is still in force and effect. Thus, to the extent the Government believes that the two provisions are co-extensive, enjoining any action under § 1021 should not have any impact on the Government.

While most of Forrest’s ruling involved hoisting the government on its own obstinate petard, she also left a goodie in her ruling for the higher courts that will surely review her decision after the government surely appeals (unless Congress passes a fix to the NDAA tomorrow, as they might). Forrest established the importance of speech by pointing to … Anthony Kennedy’s opinion in Citizens United.

In Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), Justice Kennedy wrote that “[s]peech is an essential mechanism of democracy, for it is the means that hold officials accountable to the people . . . . The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a pre-condition to enlightened self-government.” Id. at 899. Laws that burden political speech are therefore subject to strict scrutiny. Id. at 898. “The First Amendment protects speech and speaker, and the ideas that flow from each.” Id. at 899.

If corporations can avail themselves of unlimited campaign speech, then mere journalists and activists ought to be able to engage in political speech without being indefinitely detained.

And yet, it took a judge to make that argument to the government.

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Government Invokes Valerie Plame to Argue CIA Acknowledgment that Bush Authorized Torture Is Not Official Acknowledgment

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As you’ll recall, back in April I went on a week-long rant about the great lengths–including submitting a secret declaration from the National Security Advisor–the Obama Administration had gone to hide a short reference to the September 17, 2001 “Gloves Come Off” Memorandum of Notification. In doing so, it appears the Obama Administration hid George Tenet’s invocation of the Presidential MON that authorized the capture and detention of terrorists but which the Bush Administration used as its authorization to torture those alleged terrorists. (post 1, post 2, post 3, post 4, post 5, post 6, post 7)

In a classified hearing on March 9, the government claimed that releasing the reference in question would “reveal[] for the first time the existence and the scope of” what now clearly appears to be the MON. After I went on my rant, the ACLU informed the Circuit Court that the claim might be false. If the reference was indeed to the MON, ACLU wrote, then the CIA had already revealed that the September 17, 2001 MON authorized torture in this litigation.

If true, it may be relevant to this Court’s consideration that the CIA officially acknowledged the existence of that memorandum in this very litigation.

In response to appellees’ Freedom of Information Act request, the CIA identified as responsive “a 14-page memorandum dated 17 September 2001 from President Bush to the Director of the CIA pertaining to the CIA’s authorization to detain terrorists” and “to set up detention facilities outside the United States.” Eighth Declaration of Marilyn A. Dorn

On Friday, the government responded, effectively saying that Marilyn Dorn’s declaration doesn’t count as official acknowledgement of the MON.

For the reasons set forth in the Government’s classified filings, the disclosures identified in plaintiffs’ letter, including the information provided in the Dorn declaration, do not constitute an official disclosure of the information redacted from the OLC memoranda.

Notably, in its discussion of the cases which it cited to support its claim that Dorn’s description of the MON doesn’t count, it also included language that would address John Rizzo’s extensive blabbing about the MON as well as Glenn Carle’s CIA Publication Review Board-approved reference to CIA having received a Finding covering torture (neither of which the ACLU mentioned in its letter). But look what case they cited to make that argument.

This Court applies “[a] strict test” to claims of official disclosure. Wilson v. CIA, Read more →

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Big Boy Pants and the Presidency

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Frankly, I think Jose Rodriguez was being naive when he claimed that having Jay Bybee’s signature on a memo authorizing some, but not all, of the torture the torturers had already done by August 1, 2002 constituted full authority for what they had done.

But before moving forward, Jose Rodriguez got his superiors, right up to the president – to sign off on a set of those techniques, including waterboarding.

Jose Rodriguez: We needed to get everybody in government to put their big boy pants on and provide the authorities that we needed.

Lesley Stahl: Their big boy pants on–

Jose Rodriguez: Big boy pants. Let me tell you, I had had a lot of experience in the agency where we had been left to hold the bag. And I was not about to let that happen for the people that work for me.

Lesley Stahl: There wasn’t gonna be any deniability on this one?

Jose Rodriguez: There was not gonna be any deniability. And I tell you something. In August of 2002, I felt I had all the authorities that I needed, all the approvals that I needed. The atmosphere in the country was different. Everybody wanted us to save American lives.

After all, to this day, these counterterrrorism programs are being run on a Memorandum of Notification that not only doesn’t comply with the terms of the National Security Act, but shields the President (Obama even more so than Bush) from any direct accountability, a carefully crafted deniability that the CIA has worked to preserve.

Lesley Stahl was apparently not up to the task of asking Rodriguez about the torture the torturers actually used which exceeded the terms of the authorization. She describes waterboarding as laid out in the Bybee Memo, without acknowledging that the torturers didn’t follow those guidelines. Stahl asserts as fact that the CIA kept Abu Zubaydah up for 3 straight days, when evidence suggests his sleep deprivation lasted longer, perhaps as long as 11 days. Had Stahl laid out the degree to which the torturers were known to have exceeded guidelines (both before and after those guidelines were codified in the Bybee Memo), she might have noted the underlying problem with this exchange.

Lesley Stahl: Oh, you had rules for each thing?

Jose Rodriguez: Yes, we had rules. And not only that, but every time we did any of this, we had to ask permission. The field had to ask permission of headquarters.

Lesley Stahl: Each time.

Jose Rodriguez: Each time.

As she herself pointed out, Rodriguez was not doing the torture. He wasn’t in the field. He was at HQ. In fact, he was one of the guys sitting in Langley giving the oral permissions for individual torture techniques both before and after Bybee signed his memo, the techniques that exceeded the rules laid out in Bybee. You’d think Stahl might have pointed that out.

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Is the Government Worried about Revealing Broader Targeted Killing Authority in the Drone FOIAs?

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In addition to yesterday’s letter’s explanation that the government needed an extension in ACLU and NYT’s Anwar al-Awlaki drone FOIA because Obama and/or his closest aides–the highest level of the Executive Branch–were getting involved, there was one other interesting phrase I wanted to note: the way in which it portrays the FOIA.

We write respectfully on behalf of the Department of Justice and the Central Intelligence Agency (collectively, the “Government”) to seek a further extension until May 21, 2012, of the Government’s deadline to file its consolidated motion for summary judgment in these related Freedom of Information Act cases seeking records pertaining to alleged targeted lethal operations directed at U.S. citizens and others affiliated with al Qaeda or other terrorist groups. [my emphasis]

That description doesn’t precisely match the request in any of the three FOIAs, which ask for:

ACLU: the legal authority and factual basis of the targeted killing of [Anwar] al-Awlaki, Abdulrahman [al-Awlaki], and [Samir] Khan.

NYT Savage: all Office of Legal Counsel memorandums analyzing the circumstances under which it would be lawful for United States armed forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist.

NYT Shane: all Office of Legal Counsel opinions or memoranda since 2001 that address the legal status of targeted killings, assassination, or killing people suspected of ties to Al-Qaeda or other terrorist groups by employees or contractors of the United States government.

The government seems squeamish, first of all, about repeating the language used in all three of these requests–targeted killing–opting instead for the phrase “targeted lethal operations.” Note, significantly, that these requests, and especially Shane’s, would not be limited to drone strikes, but also would include hit squads.

The government understandably opts not to use the names specified by ACLU, opting instead to use the generic “US citizen” used by Savage.

Equally understandably, it uses Shane’s language to describe the target: “Al-Qaeda or other terrorist groups.” But I find the adoption of Shane’s formulation significant, because it is much broader than the language from the AUMF:

those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons

And somewhat broader than the language from the NDAA:

person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners

Now, it’s not just Shane’s language that broadens the scope here. None of the three requests mention AQAP, which would at least give the government the ability to focus on questions about how it decided that Awlaki was a legitimate target under the AUMF (on that topic, note this exchange between Robert Chesney and Bruce Ackerman). Both NYT requests ask for information about targeting terrorists generally. Which might get into some interesting targeting decisions both specific to Pakistan (for example, the original decision to target Beitullah Mehsud–and therefore the Pakistani Taliban–was based on a potentially erroneous information about a dirty bomb) and more generally in places like Gaza or Iran or Latin America.

In other words, if the government maintains it has the authority to assassinate terrorists, generally, perhaps tied to the Iraq AUMF or perhaps tied to the Gloves Come Off MON, then this language might make it hard for the government to provide a tidy response to this FOIA.

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